Madhu Bala
Vs. Suresh Kumar [1997] INSC 611 (23 July 1997)

M.K.
MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

M.K.
MUKHERJEE, J.

Special
leave granted. Heard the learned counsel for the parties.

On February 18, 1988 the appellant filed a complaint
against the three respondents, who are her husband, father- in-law and
mother-in-law respectively, before the Chief Magistrate, Kurukshetra alleging
commission of offences under Sections 498A and 406 of the Indian Penal Code [I
P C for short] by them. On that complaint, the learned Magistrate passed an
order under Section 156(3) of the Code of Criminal Procedure (code for short)
directing the police to register a case and investigate into the same. Pursuant
to the said direction Thaneswar Police Station registered a case being FIR No.
61 of 1988 and on completion f investigation submitted charge sheet (police
report) against the three respondents under Section 198A and 406 I P C. The
learned Magistrate took cognizance upon the said charge- sheet and thereafter
framed charge against the three respondents under Section 406 I P C only as,
according to the learned Magistrate, the offence under Section 198A I P C was
allegedly committed in the district of Karnal. Against the framing of the
charge the respondents moved the Sessions Judge in revision, but without
success.

Thereafter
on January 29, 1994 the appellant filed another
complaint against the respondents under Section 498A IPC before the Chief
Judicial Magistrate, Karnal and on this complaint the learned magistrate passed
a similar order under Section 156(3) of the Code for registration of a case and
investigation. In compliance with the orders FIR No. 111 of 1994 was registered
by the Karnal Police Station and on completion of investigation charge-sheet
was submitted against the three respondents under Section 498A I.P.C.; On that
charge sheet the learned Magistrate took cognizance of the above offence and
later on framed charge against them in accordance with Section 240 of the Code.

While
the above two cases were being tried the respondents filed petitions under
Section 482 of the Code before the Punjab & Haryana High Court for quashing
of their proceedings on the ground that the orders passed by the Chief Judicial
Magistrates of Kurukshetra and Karnal directing registration of cases in
purported exercise of their power under Section 156 (3) of the Code were
patently wrong and consequently all actions taken pursuant thereto were
illegal. The contention so raised found favour with the High Court; and by the
impugned judgment it quashed the orders of the Chief Judicial Magistrates of Kurukshetra
and karnal dated February 18, 1988 and January 29, 1994 respectively, pursuant
to which cases were registered by the police on the complaints of the
appellant, and the entire proceedings of the two cases arising therefrom.
According to the High Court, under Section 156(3) of the Code a Magistrate can
only direct investigation by the police but he has no power to direct
registration of a case'. in drawing the above conclusion, it relied upon the
judgments of this Court In Gopal Das Sindhi & Ors. vs. State of Assam (AIR 1961 SC 986) and Tula Ram & Ors. vs. Koshore Singh (AIR 1977 SC 2401)
and some judgments of the Punjab and Haryana
High Court which according to it, followed the above tow decisions of this
court.

In our
considered view, the impugned judgment is wholly unsustainable as it has not
only failed to consider the basic provisions of the Code but also failed to
notice that the judgments in Gopal Das (supra) and Tula Ram (supra) have no
relevance whatsoever to the interpretation or purport of Section 156(3) of the
Code. The earlier judgments of the Punjab & Haryana High Court, which have
been followed in the instant case also suffer from the above two infirmities.

Coming
first to the relevant provisions of the Code, Section 2 (d) defines 'complaint'
to mean any allegation made orally or in writing to a Magistrate, with a view
to his taking action under the Code that some person, whether known or unknown
has committed an offence, but does not include a police report. Under Section 2
(c) cognizable offence means an offence for which, and cognizable case means a
case in which a police officer may in accordance with the First Schedule (of
the Code) or under any other law for the time being in force, arrest without
warrant. Under Section 2(r) police report means a report forwarded by a police
officer to a Magistrate under sub-section (2) of Section 173 of the Code.
Chapter XII of the Code comprising Sections 154 to 176 relates to information
to the police and their powers to investigate. Section 154 provides, inter alia
that the officer uncharge of police station shall reduce into writing every
information relating to the commission of a cognizable offence given to him
orally and every such information if given in writing shall be signed by the
person giving it and the substance thereof shall be entered in book to be kept
by such officer in such form as the State Government may prescribe in this
behalf. Section 156 of the Code with which we are primarily concerned in these
appeals reads as under:

"(1)
Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a Court having jurisdiction
over the local area within the limits of such station would have power to
inquire into or try under the provisions of Chapter XIII.

(2) No
proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not
empowered under this section to investigate.

(3)
Any Magistrate empowered under Section 190 may order such an investigation as
above mentioned." On completion of investigation undertaken under section
156(1) the officer in charge of the Police Station is required under Section
173(2) to forward to a Magistrate empowered to take cognizance of the offence
on a police report a report in the form prescribed by the State Government
containing all the particulars mentioned therein.

Chapter
XIV of the Code lays down the conditions requisite for initiation of
proceedings by the Magistrate. Under sub- section (1) of Section 190 appearing
that Chapter any Magistrate of the first class and any Magistrate of the second
class specially empowered may take cognizance of any Magistrate of the first
class and any Magistrate of the second class specially empowered may take
cognizance of any offence (a) upon receiving a complaint of facts which
constitutes such offence; (b) upon a police report of such facts; or (c) upon
information received from any person other than a police officer, or upon his
own knowledge that such offence has been committed. Chapter XV prescribes the
procedure the Magistrate has to initially follow if it takes cognizance of an
offence on a complaint under section 190(1)(a).

From a
combined reading of the above provisions it is abundantly clear that when a
written complaint disclosing a cognizable offence is made before a Magistrate,
he may take cognizance upon the same under Section 190(1)(a) of the Code and
proceed with the same in accordance with the provisions of Chapter XV. The
other option available to the Magistrate in such a case is to send the
complaint to the appropriate Police Station under Section 156(3) for
investigation. Once such a direction is given under sub section (3) of Section
156 the police is required to investigate into that complaint under sub-section
(1) thereof and on completion of investigation to submit a police report in
accordance with Section 173(2) on which a Magistrate may take cognizance under
Section 190(1)(b) but not under 190(1)(a). Since a complaint filed before a
Magistrate cannot be police report in view of the definition of complaint
referred to earlier and since Section 156(1) has to culminate in a police
report the complaint - as soon as an order under Section 156 (3) is passed
thereon - transforms itself to a report given in writing within the meaning of
Section 154 of the Code, which id known as the First information Report (F I
R). As under Section 156 (1) the police can only investigate a cognizable case
it has to formally register a case on that report.

The
mode and manner of registration of such cases are laid down in the Rules framed
by the different State Governments under the Indian Police Act, 1861. As in the
instant case we are concerned with Punjab Police Rules, 1934 (Which are
applicable to Punjab, Haryana, Himachal Pradesh and Delhi) framed under the said Act we may
now refer to the relevant provisions of those Rules.

Chapter
XXIV of the said Rules lays down the procedure an officer-in-charge of a Police
Station has to follow on receipt of information of commission of crime. Under
Rules

24.1
appearing in the Chapter every information covered by Section 154 of the Code
must be entered in the First information Report Register and substance thereof
in the daily diary. Rule 24.5 says that the First information Report Register
shall be a printer book in Form 24.5(1) consisting of 200 pages and shall be
completely filled before a new one is commenced. It further requires that the
cases shall bear an annual serial number in each police station for each calender
year. The other requirements of the said Rules need not be detailed as they
have no relevance to the point at issue.

From
the foregoing discussion it is evident that whenever a magistrates directs an
investigation on a 'complaint' the police has to register a cognizable case on
that complaint treating the same as the FIR and comply with the requirements of
the above Rules. It, therefore, passes our comprehension as to how the
direction of a Magistrate asking the police to 'register a case' makes an order
of investigation under Section 156(3) legally unsusteinable.

Indeed,
eve if Magistrate does not pass a direction to register a case, still in view
of the provisions of Section 156(1) of the Code which empowers the Police to
Investigate into a cognizable 'case' and the Rules framed under the Indian
Police Act, 1861 it ( the Police) is duty bound to formally register a case and
then investigate into the same.

The
provisions of the Code, therefore, does not in any way stand in the way of a
Magistrate to direct the police to register a case at the police station and
then investigate into the same. In our opinion when an order for investigation
under Section 156(3) of the Code is to be made the proper direction to the
Police would be to register a case at the police station treating the complaint
as the First Information Report and investigate into the same.

Adverting
now to the two cases of this Court on which reliance has been placed by the
High Court we find that in the case of Gopal Das (supra) the facts were that on
receipt of a complaint of commission of offences under Section 147,323,342 and
448 of the Indian Penal Code, the Additional District Magistrate made the following
endorsement: " To Shri C. Thomas, Magistrate 1st class, for
disposal." On receiving the complaint Mr. Thomas directed the officer In-
charge of the Gauhati Police Station to register a case, investigate and if
warranted submit a charge sheet. After investigation police submitted a charge
sheet under Section 448 of the Indian Penal Code and on receipt thereof the
Additional District Magistrate forwarded to Shri R. Goswami, Magistrate for
disposal. Shri Goswami framed a charge under Section 448 of the Indian Penal
Code against the accused therein and aggrieved thereby the accused first
approached the revisional Court and, having failed there, the High Court under
Article 227 of the Constitution of India. Since the petition before the High
Court was also displeased they moved this Court. The contention that was raised
before this Court was that Mr. Thomas acted without Jurisdiction in directing
the police to register a case to investigate it and thereafter to submit a
charge sheet, if warranted. The steps of reasoning for the above contention was
that since the Additional District Magistrate had transferred the case to Mr.
Thomas for disposal under Section 192 of the Code it must be said that the
former had already taken cognizance thereupon under Section 190(1)(a) of the
Code. Therefore, he (Mr. Thomas) could not pass any order under Section 156(3)
of the Code as it related to a pre-cognizance stage; and he could deal with the
same only in accordance with Chapter XVI. In negativing this contention this
Court held that the order of the Additional District Magistrate transferring the
a case to Mr. Thomas on the face of it did not show that the former had taken
cognizance of any offence in the complaint.

According
to this Court the order was by way of an administrative action, presumably
because Mr. Thomas was the Magistrate before whom ordinarlly complaints were to
be filed. The case of Gopal Dass (supra) has, therefore, no manner of
application in the facts of the instant case. It is interesting to note that the
order that was passed under Section 156(3) therein also contained a direction
to the Police to register a case.

In Tula
Ram's (supra) the only question that was raised before this Court was whether
or not a Magistrate after receiving a complaint and after directing
investigation under Section 156(3) of the Code and on receipt of the 'Police
report' from the police can issue notice to the complainant, records his
statement the statements of other witnesses and then issue process under
Section 204 of the Code. From the question it self it is apparent that the said
case related to a stage after police report under Section 173(2) of the Code
was submitted pursuant to an order under Section 156(3) of the Code and not to
the nature of the order that can be passed thereunder [ Section 156(3)]. The
cases of the Punjab & Haryana High Court referred to by the learned Judge
in the impugned judgement need not be discussed in details for they only lay
down the preposition that under Section 156(3) a Magistrate can only direct
investigation but cannot direct registration of a case for no such power is
given to him under that section. We repeat and reiterate that such a power
inheres in Section 156(3), for investigation directed thereunder can only be in
the complaint filed before the Magistrate on which a case has to be formally
registered in the Police Station treating the same as the F.I.R If the
reasoning of the Punjab and Haryana High Court is taken to its logical
conclusion it would mean that if a Magistrate issues a direction to submit a
report under Section 173(2) of the Code after completion of investigation while
passing an order under Section 156(3) it would be equally bad for the said
Section only 'directs investigation' and nothing more. Needless to say, such a conclusion
would be fallacious, for while with the registration of a case by the police on
the complaint, the investigation directed under Section 156(3) commences, with
the submission of the 'Police report' under Section 173(2) it culminates.

On the
conclusions as above we set aside the impugned judgment and orders of the High
Court and direct the concerned Magistrates to proceed with the cases in
accordance of law. The appeals are accordingly allowed.